Election night could provide a quick White House winner, or a flood of mail-in ballots and social division could delay results for weeks
Ruth Bader Ginsburg, 87, died Friday of metastatic pancreatic cancer after 27 years on the U.S. Supreme Court and several bouts with cancer during her life.
Only the second woman to serve on the U.S. Supreme Court, she shaped her legacy as a lawyer, then judge, as an advocate of women’s rights—which in her mind included no restrictions on government-funded abortion. She described herself as a “flaming feminist.”
For the last decade, Ginsburg led the court’s liberal wing, following Justice John Paul Stevens’ 2010 retirement. During that time she became much more openly liberal than previously in her career, criticizing President Donald Trump when he was a candidate in 2016. (She later apologized saying, “Judges should avoid commenting on a candidate for public office.”) She also indicated her support for gay marriage before hearing the Obergefell v. Hodges case in 2015.
Her death weeks before Election Day and during a Republican administration initiates a frenzied process for her replacement. Senate Majority Leader Mitch McConnell said Friday a Trump nominee will get a full Senate vote. Republicans control the Senate and the White House, but a Republican appointee taking Ginsburg’s spot will generate heated opposition. Liberal activists had urged her to retire during President Barack Obama’s administration, but she refused. Trump will face pressure to pick a woman. Only four have served on the Supreme Court.
With a Ginsburg replacement like 7th U.S. Circuit Court of Appeals Judge Amy Coney Barrett, a 6-3 conservative majority would tilt the court’s balance of power. The court might have the votes to overturn Roe v. Wade, for example, and even overrule Chief Justice John Roberts’ moderating efforts on a number of issues.
Though soft-spoken and barely over 5 feet tall, she was one of the most popularly recognized names on the court, with the simple moniker “RBG.” Former Justice Anthony Kennedy, with more landmark decisions to his name, doesn’t have a major motion picture about him as Ginsburg does—or sequin pillowcases for sale on Amazon emblazoned with his face. Ginsburg embraced her stardom, publicly expressing her delight in internet memes about her.
She was one of three Jews on the current court, though she was not religiously active. She had a 56-year marriage to Martin Ginsburg, whom she called her “biggest booster” and who died in 2010. They had two children.
Until 2019, Ginsburg had never missed a day of oral arguments, even in days after cancer surgeries and her husband’s death. But after she fell and broke ribs in November 2018, doctors found early-stage lung cancer and performed surgery to remove it the next month. Doctors gave her a positive prognosis at the time, but she missed arguments for the first time in her tenure. In response to health scares, she followed a strict exercise regimen for years. Her longtime trainer released a book called The RBG Workout.
Ginsburg leaned hard left later in her career, but earlier she found more consensus with justices like close friend Antonin Scalia. Still, her “living Constitution” judicial philosophy was always diametrically opposed to Scalia’s “textual” approach to the Constitution. She said in her confirmation hearings that a judge should take into account “the climate of the era.”
“What’s not to like?” Scalia once said about her. “Except her views on the law.”
Some feminists had initially opposed her nomination to the high court because she had previously criticized some of the reasoning in Roe v. Wade. But she endorsed the idea of a right to abortion during her confirmation hearing and has opposed any restrictions on abortion since (including opposing a congressional ban on partial-birth abortion).
Aside from her authorship of a major gender equality case (United States v. Virginia, an opinion allowing women into the Virginia Military Institute), much of her judicial legacy came simply from her votes. Some major 5-4 decisions: She voted to legalize gay marriage and uphold Obamacare. On religious freedom, she voted on the side of a Christian school in the landmark Hosanna-Tabor case but voted against religious freedom claimants in the Hobby Lobby and Masterpiece Cake Shop cases.
Her dissents attracted much attention. In Burwell v. Hobby Lobby, she said the court was causing “havoc” by allowing Hobby Lobby to claim religious freedom protections. In Shelby County v. Holder, she decried the court’s edits to the Voting Rights Act as “hubris.” Other dissents to attract attention were Bush v. Gore, Stenberg v. Carhart (the partial-birth abortion case), and especially Ledbetter v. Goodyear Tire & Rubber Co., a 2007 case about gender pay discrimination that led to Congress passing the Lily Ledbetter Fair Pay Act.
Judicial legacy aside, Ginsburg’s life story is remarkable. She was the daughter of a first-generation Jewish immigrant (her father) and became one of the most powerful officials in the United States. As a child during World War II, Ginsburg recalled a car ride through Pennsylvania during which her family passed a sign outside a resort that read, “No dogs or Jews allowed.”
She similarly suffered a number of indignities as one of the very few women at Harvard Law School when she started in 1959, like being banned from visiting particular men-only libraries. She recalled later declining requests to speak at prominent male-only clubs.
While she attended Harvard, her husband was diagnosed with testicular cancer. She attended his classes for him while maintaining her top ranking in her own class as well as caring for their young daughter. Martin recovered, but as a woman and a Jew, she had trouble finding a job after graduation from law school even though she ranked first in her class.
She managed to find opportunities and eventually became the first female tenured professor at Columbia Law School in 1972. She worked for the American Civil Liberties Union as well, arguing six gender discrimination cases successfully at the Supreme Court. In one, she argued for men’s rights, since “widowers” were left out of certain Social Security benefits that widows received.
In 1980, President Jimmy Carter appointed her to the U.S. Circuit Court of Appeals for the D.C. Circuit, a court that often is a pipeline to the Supreme Court. The promotion to the highest court came in 1993 from President Bill Clinton.
Ginsburg’s two children, Jane and James, and several grandchildren survive her.